Welcome to our Supreme and Appellate Court summaries page. On this page, I provide abbreviated summaries of decisions from the Connecticut appellate courts which highlight important issues and developments in Connecticut law, and provide practical practice pointers to litigants. I have been summarizing these court decisions internally for our firm for more than 10 years, and providing relevant highlights to my municipal and insurance practice clients for almost as long. It was suggested that a wider audience might appreciate brief summaries of recent rulings that condense often long and confusing decisions down to their basic elements. These summaries are limited to the civil litigation decisions. I may from time to time add commentary, and may even criticize a decision’s reasoning. Such commentary is solely my own personal opinion. I hope the reader finds these summaries helpful. – Edward P. McCreery
Supreme Court Advance Release Opinions:
SC19359 - Persels & Associates, LLC v. Banking Commissioner
Noting that it has generally been the policy of the Courts to defer to the Legislature, especially as to the powers that exist between the two departments, the Court said it will not hesitate to declare a statute unconstitutional when it clearly invades judicial power. Accordingly, the Court declared C.G.S. § 36a-671 unconstitutional to the extent it attempts to regulate and license the practice of law in Connecticut. The Court acknowledged that there is a problem with debt negotiation agencies luring in customers, taking their limited funds, and ultimately providing little or no value for that money. Nonetheless, the Legislature’s attempt to have the Banking Department regulate attorneys who provide debt negotiation services improperly infringes upon the role of the judiciary which itself is the only authority empowered to determine the character, reputation integrity and general fitness to provide legal services affiliated with debt negotiation.
The attempt to require licensing and license fees of attorneys by the Banking Department impinges upon the Judicial Branch’s exclusive authority to suspend or disbar attorneys who have engaged in professional misconduct. The Court stated that the manner in which legal services are provided as represented by the debt negotiation agency does amount to the practice of law. It does not matter that many of the debt negotiation services can be provided by non-attorneys. Such activities become the practice of law when performed by an attorney in the context of an attorney/client relationship. But, if as claimed, a negotiation company is merely using a Connecticut attorney as a front to circumvent debt negotiation statutes, the Banking Commissioner Department has full authority to go after them, including the attorney themselves, if they are not actually practicing law.
The Court also gave a shout-out to the Office of Chief Disciplinary Counsel to monitor vigilantly lawyers practicing in this field, and said it should look to the Regulations of the Banking Commissioner to determine what would be deemed “reasonable fees” that the attorney could charge. Finally, the Court gave a warning to newly admitted attorneys to be mindful of the ethical pitfalls they may encounter in this practice in light of the suggestion that many debt negotiation companies hire new and inexperienced attorneys fresh out of law school.
Appellate Court Advance Release Opinions:
The Town of Woodbury appealed a finding of the Workers Compensation Commissioner that there was sufficient evidence that the hearing loss suffered by the town police officer was work-related. While directing traffic, the police officer was struck by an auto in his torso and spun around, but remained on his feet. The officer was taken to the hospital, complaining of dizziness, pain in his back, neck, elbow and knees, followed months later by complaints of continued dizziness, loss of hearing and high-pitched buzzing in his ears. A physician diagnosed the police officer with hearing loss and loss of equilibrium, and opined to a reasonable degree of probability that it was attributable to the accident. A medical examiner hired by the Town concluded the opposite, that there was no plausible reason why one would attribute hearing loss to the accident in question.
The Court noted that the Commissioner’s conclusions that an injury did or did not arise out of the course of employment is conclusive when supported by evidence, and a reviewing court should not set that aside simply because the court might believe one set of evidence is better than the one that supports the conclusion. The Commissioner’s conclusions, in turn, should be supported by expert medical opinion which, in turn, must be based upon reasonable probabilities and not mere speculation. Here, the Commissioner’s report was supported by a medical opinion. Whether the doctor reviewed medical records closest in time to the accident goes to the weight of the evidence, and does not render the opinion based upon mere speculation.
The expert also based his conclusions upon a personal examination and stated that his review of earlier records would not have changed his opinions. There was no challenge to the credibility of that testimony by the Commissioner. That expert apparently testified credibly that a violent shaking of the head can cause damage to hearing without an impact to the head area. It was up to the Commissioner whether to credit that expert testimony.
AC36792 - New London County Mutual Ins. Co. v. Sielski
In their Residential Disclosure Form, the sellers of property claimed they had no knowledge of any flooding of the basement or rotten wood. After the closing, the buyers discovered rotten and moldy beams in the basement and seeping water, and initiated a lawsuit against the sellers for misrepresentation. The sellers' insurance company then brought a declaratory judgment action, for a finding that it did not have a duty to defend the sellers, because the resultant damages did not constitute “property damage” as defined under the policy. The Trial Court agreed and granted summary judgment to the insurer.
On appeal, the Appellate Court followed the “Four Corners Doctrine,” noting that an insurer’s duty to defend is triggered if at least one allegation of the complaint falls even possibly within coverage. Determining whether or not a property damage claim arose involves interpreting the policy, which is reviewed as a contract. This policy defined an “Occurrence” as an accident even if it occurs over a continuous time frame. However, it must cause bodily injury or property damage, with “Property Damage” being defined as physical injury to or destruction of tangible property. Noting that this is an issue of first impression of whether or not a negligent misrepresentation may be considered “Property Damage”, or be deemed an “Occurrence,” within a Homeowner’s Policy, the Decision notes that almost all Superior Court decisions have concluded to the contrary.
First, the Court set aside the arguments of the seller that the Capstone decision controlled. That was a third-party claimant case, and this is a first party claimant case. The issue in Capstone was whether or not the actual negligent construction that damages the property of another could be covered as property damage under a CGL policy.
The Court then turned back to the Superior Court decisions, and noted that a number of out-of-state decisions have similarly held that misrepresentations are economic or contractual in nature, and do not give rise to property damage claims. The Court concluded that this was the proper outcome, quoting a West Virginia decision for the proposition that damages flowing from misrepresentation have no basis as an element of property damage, but are damages of an economic or contractual nature, not intended to be covered by homeowners' policies. Accordingly, there is no duty to defend triggered by the assertion of such a claim.
In closing, the Court noted that determining whether or not an insurer has a duty to defend remains a question of law, not a question of fact, because it is a matter of reviewing the allegations in the complaint against the language in the insurance policy.
When family members were killed in an accidental fire, they sued the Housing Authority and the City, asserting that the apartment complex did not have a fire escape, sprinklers, or an interconnected smoke detector system. It was also claimed that the City failed to inspect the apartment to discover these deficiencies. Both the City and the Housing Authority moved for summary judgment, claiming they were immune from the liability by statute 52-557n(b) for failure to inspect and under C.G.S. § 52-557n, because the claims involved discretionary duties. The Trial Court granted summary judgment.
On appeal, the Appellate Court noted that the fire chief’s affidavit in support of summary judgment stated that he had no statutory duty to inspect the affordable apartments, but, in fact, C.G.S. § 29-305 does impose such a duty. The plaintiffs argued that the fire chief’s apparent lack of knowledge of his statutory duties could rise to a finding of recklessness, which is an exception to the immunity afforded for failure to inspect property. The Appellate Court agreed.
The Court stated that whether something is reckless is a factual question, meaning whether it was egregious enough to permit a factual finding of recklessness. The Court added, however, that the Statute is clearly ambiguous as to what it mean by the exception “reckless disregard for health and safety.” Finding the legislative history unhelpful, the Court turned to the common law use of the term, “recklessness,” noting that it is more than negligence, more than gross negligence, and means acting with a state of consciousness. Under this standard, it is not enough to merely fail to conduct an inspection, nor to conduct an inspection negligently. Appearing to rely on the thinnest legal grounds, the Courts noted that the affidavits of the defendant’s municipal officials, asserted they were familiar with the legal rules requiring inspection of apartments, and at the same time, denied they had any legal duty to inspect the apartments. [Note: Why on earth would you put an assertion of legal obligation in a factual affidavit?]
With quite a stretch of reasoning, the Court concluded that a fact-finder might infer that the municipal official’s claim in his affidavit that he “knew the law” meant he had read and made himself familiar with the legal rules, including the legal obligation of an annual inspection, which in turn might mean he made a conscious decision to disregard his legal obligations to inspect the apartment. [Really? This is a crazy stretch of logic! This shows how one mistake in filling out an affidavit in support of a motion for summary judgment can backfire tremendously.]
This case is also one of the first cases to apply the new Hanes v. Middletown Test for an identifiable person subject to imminent harm exception to the discretionary immunity, on the issue of foreseeability. The four-prong-prong Hanes Test, is: (1) dangerous conditions apparent to the municipality; (2) that is likely to cause harm to the plaintiff; (3) harm of a sufficient nature to implicate a clear and unequivocal duty to alleviate the condition; and (4) probability that the harm would occur is so high as to require the defendant to act immediately. All four prongs must be met. Since the Trial Court had not considered this new test, it was remanded for reconsideration on that issue. But summary judgment was reversed on the issues of recklessness under C.G.S. § 52-557n(b)(8).
Prior to 2012, the City of Stamford was serviced by six autonomous volunteer fire departments. In 2012, the City charter was amended to consolidate the six volunteer fire departments into one under the direction of a fire chief but they remained semi-autonomous. One of the departments brought a declaratory judgment action, claiming they could not be forced to consolidate with the other city departments, and appealed the rejection of all of their claims by the Trial Court.
The Appellate Court agreed with the Trial Court that the charter amendment did not violate the autonomous fire department corporate statutory or constitutional rights. First, there is no statute that grants a private corporation the right to engage in municipal fire-fighting activities, regardless of length of history of operations, historical city funding, or other factors. Maintaining a fire department is traditionally a public function within the State’s police power, which may be delegated to local municipalities. Further, the Charter specifically stated it was not intended to affect the organizations’ status or their property. The volunteer fire departments, in turn, are bound by the charter only if they elect to continue to provide fire protection to the City. Under the Rules of Statutory Construction, the Court refused to interpret the word “shall” as being mandatory that the fire departments give up their property, as it defied a common sense interpretation of the entirety of the Charter amendment. Further, the volunteer fire departments implicated here were not “ordinance-created departments” under C.G.S. § 7-301, which might enjoy some protections to being ordered to do something against their will. In any event, even that Statute would not have been violated because the volunteer fire departments were not being forced to give up their existence or their property.
Father amended his estate plan to disinherit his daughter, and after his death, she claimed he lacked capacity to effectuate the changes. Several years beforehand, the father had a detailed trust instrument created by a law firm. After he was diagnosed with Alzheimer’s and Parkinson’s Disease, he clearly had good days and bad days where he was confused and forgetful, and was physically impaired. At this point the father apparently decided to write one of his daughters out of his testamentary trust. He went to the same lawyer after a dispute arose because the daughter owned a home nursing business, and through her company, was providing an aide for her father, and charging his long term care policy. That lawyer ended up testifying he had no concerns about the mental state of the father at the time of execution of the amendment, and he did not believe that his client was under any duress. Other witnesses testified that upon arrival at the lawyer’s office, the decedent stated that he wanted to clean up the mess created by his daughter, and to “write [her] out.” Upon his departure, he was heard to say, “I fixed it.” The siblings testified they never suggested to their father that he remove the sister as a beneficiary.
The siblings also testified that on bad days their father was confused and hallucinated but on his good days, he knew and understood his financial circumstances and was able to converse lucidly with family members. The Trial Court held that regardless of whether you apply a contract standard for a trust or testamentary standard for the creation of a will, the father was of sufficiently sound mind to make his own decisions.
On appeal, the Appellate Court said that the law in Connecticut has not clearly defined whether or not contractual standard or less exacting testamentary standard should be applied to determine whether someone was mentally capable of amending a trust agreement. The level of mental capacity to make a will is less than that necessary to make a contract or deed, or to otherwise carry on important business transactions.
The Court ultimately decided that it did not have to determine whether to apply the more minimal level of testamentary capacity because the Trial Court had found that under either standard, the father had the mental capacity to make the trust amendments. The Court’s decision was supported by medical evidence from treating physicians, who asserted that the father knew of his condition and could make decisions on his own. The plaintiff had offered testimony that it was highly probable that the father did not understand the nature and extent of his trust changes. But that testimony was based upon a physical exam of the father a year after the execution of the instruments, and did not take into account the normal progression of dementia.
The plaintiff had offered another expert treating physician who saw the father about one month before the execution of the amendments, and he testified that he did not think the father would be able to understand the whole trust instrument, but may be able to have understood some of it. The defendant’s expert countered that it was impossible for a medical professional to accurately opine the mental capabilities of a person suffering from this form of Alzheimer’s disease. He described this form of the disease as a general progression downward with plateaus from month-to-month. The Court held, although the father had been diagnosed with dementia, that alone was not sufficient to prove his incapacity. There was evidence to suggest he knew what he was doing, and could make decisions on his own, regardless of his need for significant assistance by that point in his life. The attorney who amended the trust was the same attorney who drafted it originally, and testified that the father was not confused in any way and not suffering any apparent hallucinations or other signs of dementia during the one-hour meeting at his office.
It was up to the Trial Court to choose which expert testimony to credit. It was equally up to the Trial Court whether to accept the testimony of the lay witnesses as to their observation of the physical condition of the father around the time period that he executed the instrument.
Finally, the daughter argued that by virtue of their being beneficiaries of the amended trust, the other siblings had a fiduciary relationship with the father, and thus, the burden of proof should have switched to them to establish they had not exercised undue influence over the father to write her out of the estate plan. The Trial Court correctly concluded that there is no law to support the argument that a beneficiary of a trust or a disability trustee or a death trustee or one holding a power of attorney is sufficient to switch the burden of proof on an undue influence claim. There is no authority that an unused power of attorney creates a fiduciary relationship as to all affairs. Equally, a parent/child relationship does not create a fiduciary duty or presumption of undue influence nor shifts the burden between the parties. One sibling’s status as a conservator of the father was unrelated to the execution of the trust amendment that was undertaken in an individual capacity. Equally, the amendment of the trust instrument was unrelated to the designation by the father of some of his siblings as disability trustee, or death trustee. So those appointments did not switch the burden of proof. The positions were not used to get the father to change his trust.
Mother gave power of attorney to her two sons, but for ten years only one acted as her primary caretaker and helped her with her finances. That primary caregiver son became ill and the mother suffered a series of strokes, causing her to move into the home of the second son and his wife. The daughter-in-law then assumed control of the financial affairs of the mother at the request of the second son. Shortly before the mother’s death, it was claimed that the daughter-in-law started to use her mother-in-law’s checking account as her own personal cookie jar, and eventually caused the mother-in-law to withdraw all of her liquid assets and deposit it into the accounts of the daughter-in-law and her husband.
That caused the other siblings to highjack mom, bring her to an attorney, and have her revoke the power of attorney to her second son, notwithstanding her then-state of dementia at over ninety years of age. One sibling then moved to appoint a Conservator, and the Probate Court agreed, and appointed an attorney as conservator. The Conservator then complained to the Probate Court that over $15,000 had been withdrawn from the mother’s account subsequent to their appointment, and the daughter-in-law and her husband were refusing to return the money. The Court ordered the money returned, and when the Conservator went to pick it up, he was physically assaulted by the son, necessitating a police intervention and a prompt resignation by the Conservator.
Another Conservator was appointed. The siblings then moved for the Court to order funds transferred prior to the appointment of a conservator returned. The Probate Judge refused, noting that prior to the appointment of the Conservator, the mother had a right to spend her money any way she saw fit, and the Judge would require a heightened burden for anyone seeking to challenge a pre-conservator transfer based upon undue influence, and no one had proven that to his satisfaction. The Court did order funds taken after the appointment of a conservator returned immediately, subject to some setoffs.
The mother died and the siblings then brought a twelve count Complaint against their brother and his wife, the daughter-in-law, for stealing from their mom. They alleged breach of fiduciary duty, tortious interference with their inheritance expectations, theft of their personal property, libel, slander, intentional infliction of emotional distress, unjust enrichment, etc. The defendants filed a Motion to Dismiss asserting that the court did not have jurisdiction, because their claims were already presented to the Probate Court and were ruled upon, but not appealed, and therefore the doctrine of collateral estoppel and res judicata applied.
The Trial Court concluded that it did lack subject matter jurisdiction due to the doctrine of primary jurisdiction, where the Probate Court had the right to first determine property distribution of the assets of the mother. The remedy was to file their claims in the Probate Court, and if dissatisfied, file an appeal to the Superior Court.
On appeal, the Court took the opportunity to correct the defendants. It pointed out that even though they won the argument, they misunderstood the concept of primary jurisdiction in the context of Probate Court matters. The dismissal was not a matter of “judicial economy” as they kept arguing in their briefs. The Court pointed out the Rule of Primary Jurisdiction, which is when a court and an administrative agency both have jurisdiction over a claim, but a regulatory scheme requires the administrative agency to consider the matter first. It is very similar to the doctrine of exhausting administrative remedies, but slightly different. It is a rule designed to promote the proper relationship between the Courts and the administrative agencies. Here, the Appellate Court was applying that doctrine for the first time to Probate Court proceedings. In the Probate Court context, “primary jurisdiction” has a distinct meaning. Probate Courts have primary jurisdiction over settling of estates; but even so, it is a court of limited jurisdiction, restricted to what the Legislature has assigned to it. The Trial Court relied upon § 45(a)-98 to conclude that the Probate Court had exclusive jurisdiction over this dispute. But this Statute talks about the administration of intestate estates, the admission of wills, the determination of title and rights of possession in community property of a trust or estate, construction of wills, etc.
This Statute did not confer upon the Probate Court exclusive jurisdictions over the allegations made in this Complaint. First, the Court said it was easy to conclude that the Probate Court did not have jurisdiction over the siblings’ claims of tortious interference with expectation of inheritance, slander per se, or intentional infliction of emotional distress. These torts should have remained in the Superior Court. Equally, the claims of conversion and theft of personal funds and property of the plaintiffs should have remained in the Superior Court.
As to disputes whether property belongs in the Estate, § 45a-98(b) confers concurrent jurisdiction on both the Probate Court and the Superior Courts to decide such issues. While Probate Courts have the power to adjudicate disputes regarding ownership of property, they do not have the right to enter orders regarding the collection of property or to direct the transfer of property. Here, the siblings were asking for a damages, interest, punitive damages and a constructive trust over property misappropriated by their brother and his wife, along with treble damages for theft. The Probate Court would be unable to make those awards of damages. Thus, the Probate Court would not have jurisdiction over the siblings’ conversion and statutory theft claims regarding property allegedly taken from the mother. Similarly, the Probate Court is not empowered to order the return of personal property allegedly taken by one estate beneficiary.
Next, the Court turned to the claims that the daughter-in-law breached her fiduciary duties to the mother-in-law. The decision notes that although § 45a-175 confers jurisdiction over certain fiduciaries, § 45a-98(a)(6) notes that the powers are not exclusive to the Probate Court. Thus, both Probate Courts and Superior Courts have concurrent jurisdiction to demand accountings from people in a fiduciary capacity. Even if the Probate Court does handle an accounting, case law establishes that the Superior Court has jurisdiction to then consider damage claims for any breach perpetrated by the fiduciary.
Accordingly, the Superior Court had jurisdiction to hear the breach of fiduciary duty claims against the brother and his wife. Further, the Complaint did not seek an accounting per se, but rather sought damages for the financial shenanigans. Such claims must be brought in a Superior Court, because a Probate Court cannot award such damages. Similarly, the Probate Court did not have jurisdiction over the unjust enrichment claim, nor the request that constructive trust be asserted over the misappropriated property.
Having found that the Superior Court did have jurisdiction to listen to the siblings’ claims of breach of fiduciary duty, tortious interference with inheritance, conversion, statutory theft, slander per se, intentional infliction of emotional distress, unjust enrichment, etc., it turned its attention to something the Trial Court had missed. And that was the issue of “standing”. Noting that the plaintiffs’ claims fall into two categories,(1) direct injury to themselves and (2) those alleging adverse impact upon the estate, the Court went on to hold that the plaintiffs only had standing to assert claims made on their own behalf. They did not have standing to assert the claims of harm to the mother’s estate. Only the administrator of an estate has standing to assert claims of harm to an estate. The only exception to that rule is where the executor or the administrator themselves are guilty of fraud or collusion, or alternatively, where the fiduciary has refused to act. In those circumstances, the heir may maintain the action to recover the assets for the benefit of the estate. And by Statute, the fiduciary’s decision whether to pursue a claim is binding on the beneficiaries of the estate in the absence of fraud, bad faith or gross negligence.
Here, the Complaint had no allegations of fraud, bad faith or gross negligence on the part of the administrator of the mother’s estate. Accordingly, they were all derivative claims that belonged to the administrator, and the plaintiff siblings lacked standing to maintain those claims in Superior Court.
The Town appealed a slip and fall injury when a pedestrian walking on the street fell in a pothole. The Town claimed that the Trial Court should have found the plaintiff contributorily negligent for not walking along the side of the road, as required by Statute. The Appellate Court disagreed, noting that pedestrians are only required to walk on the sidewalk and avoid the road if there is a sidewalk. When there was no sidewalk the pedestrians had a right to walk on the road. While the plaintiff is obligated to walk along the side of the road and might have been subject to a contributory negligence claim if she was walking in the middle of the road and hit the pothole, in fact, she was walking along the side of the road when she fell in the pothole. Thus, the pedestrian was in compliance with the Statute, and the Trial Court could conclude that there was no contributory negligence.
In 2003, a bank accused its customer of depositing fraudulent checks into her account. Although arrested, the criminal charges were nolled. Fast-forward seven years later, and while in prison for an apparently unrelated matter, the customer claimed that a fellow inmate informed her that they had purchased account numbers from an employee of the bank and used the information for fraudulent purposes. The customer contended that such fraudulent activity must have been the basis for the money deposited into her account, and that the bank had kept from her the fact that her account information had been stolen. She brought a lawsuit against the bank pro se, alleging fraudulent nondisclosure, CUTPA and breach of implied covenant of good faith and fair dealing.
The defendant filed a motion for summary judgment on the basis of the statute of limitations, which the Trial Court granted. The plaintiff appealed, claiming she just recently became aware of the fraud perpetrated upon her. The bank countered that the only affidavit in opposition to summary judgment was filed by the pro se plaintiff, and was replete with inadmissible hearsay allegedly from a fellow inmate regarding an unnamed employee. Thus, no admissible evidence regarding any alleged knowledge of the defendant to trigger a tolling due to concealment by fraud had been offered to the Court.
The Appellate Court agreed. To toll the statute of limitations by way of fraudulent concealment, a plaintiff must present evidence of actual awareness, intentional concealment and concealment for the purpose of obtaining delay in the filing of a complaint. All of the claims asserted by the plaintiff would normally be barred by the applicable statute of limitations. The plaintiff’s opposition affidavit contained nothing more than self-serving assertions and provided no admissible evidence as to the defendant’s alleged concealment of facts. The lack of evidence offered by the plaintiff for claims was fatal to her tolling argument. Summary judgment was appropriately granted to the bank.
AC37160 - State v. Daye
AC35548 - Ouellette v. Commissioner of Correction
AC35093 - Gould v. Commissioner of Correction
AC36778 - Benedetto v. Dietze & Associates, LLC
Plaintiff sued employer, claiming that she was fired as the officer manager on the day before her sixty-fifth birthday, because of her age, and to cover up an act of forgery that her boss had enlisted her assistance on. The defendant employer moved for summary judgment, offering a non-discriminatory reasoning for the termination that did not give rise to an inference of discrimination, along with evidence that the employee was a willing participant in the forgery. The Trial Court granted SJ, and the plaintiff appealed.
The first issue on appeal was that the Trial Court had entertained a motion to reargue on its original denial of a Request to Revise, and ended up granting the request, and ordering the plaintiff to delete portions of and amend her complaint. The plaintiff argued that the granting of the motion to reargue was nothing more than granting the defendant a second bite at the apple. The Appellate Court held that the Trial Court properly granted the Motion to Reargue because it was arguing that there was a principle of law which had been overlooked and a misapprehension of the facts by the Trial Court.
Next, the Court rejected the argument that summary judgment should not have been granted on the age discrimination claim when the employee’s personnel file was not provided. The plaintiff made no attempt to connect the argument of the failure to provide an employment file with why that should result in the denial of summary judgment.
The Court also rejected the suggestion that summary judgment was not properly granted on the forgery claim. There was no attempt to provide an independent analysis why the plaintiff’s participation in the alleged forgery should not preclude her from asserting a statutory claim based upon it.